This is a personal injury action.  Plaintiff Charles Cooper (“Plaintiff”) alleges he suffered a personal and/or bodily injuries on May 18, 2016 after Defendant Spencer James Frederick (“James”) and Does 6-10 failed to stop their vehicle and collided into the rear of Plaintiff’s vehicle. Plaintiff alleges that Defendant Michael Frederick (“Michael,” collectively “Defendants”) and Does 1 through 5 negligently hired, trained, and/or supervised James and Does 1 through 6 in such a fashion as to cause and/or contribute to the occurrence of the collision.

On April 23, 2018, Plaintiff filed a complaint against Defendants for personal injuries.

On November 30, 2020, Plaintiff filed an amendment to complaint naming Aarush Ramesh Parekh, M.D. as Doe 13.

On June 12, 2018, Defendants filed their answer.

On March 02, 2022, a Final Status Conference (“FSC”) was held. Plaintiff did not appear and the Court continued the FSC to the date of the jury trial, March 11, 2022.

On March 11, 2022, a FSC, Jury Trial, and Order to Show Cause Re: Sanctions for Plaintiff's Failure to Appear on 3/2/2022 was to be held for this action. Plaintiff did not appear. The Court noted that no trial documents had been filed prior to March 11, 2022. The Court ordered that the Complaint filed by Plaintiff on 04/23/2018 was to be dismissed without prejudice.

On August 08, 2022, Plaintiff filed a Notice of Motion to Vacate/Set Aside Dismissal, subsequently denied.

On September 15, 2022, Plaintiff filed this Motion for Reconsideration to Vacate/Set Aside Dismissal.

On September 30, 2022, Defendants filed their Opposition.

No Reply has been filed. “. . .[A]ll reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for October 13, 2022. As such, a Reply was due on October 06, 2022 in order to be timely.

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Analysis

Standard for Motion for Reconsideration – Under Cal. Code Civ. Proc. § 1008(a), “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.¿ The party making the application shall state by affidavit what application was made before, when and to what judge, what order to decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”¿¿¿¿¿ 

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Section 1008 is “the clear legislative intent to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it” and could not have been considered by it.¿ (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)¿ Section 1008 is the exclusive means for modifying, amending or revoking an order.¿ That limitation is expressly jurisdictional.”¿ (Id. at p. 1499.)¿¿ 

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“The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”¿ (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.)¿ There is a strict requirement or diligence on the moving party; the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier.¿ (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)¿ Evidence obtained after a is not ground for reconsideration where there was no showing why evidence could not have been obtained earlier.¿ (Jones v. P.S. Develop. Co., Inc. (2008) 166 Cal.App.4th 707, 725, overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 530 [discussing evidence discovered after a hearing on a motion for summary judgment].)¿¿¿¿¿ 

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Application – On March 11, 2022, a jury trial was to be held and Plaintiff did not appear. No trial documents were filed. The Court dismissed the Complaint filed by Plaintiff on 04/23/2018.

The Court notes that this action is almost four (4) years old.

Plaintiff brought a Motion to Set Aside/Vacate the Dismissal and presents that he had a medical emergency on March 11, 2022. The Court took into consideration Plaintiff’s failure to appear at the Final Status Conference (“FSC”) on March 02, 2022 and that no trial documents were filed. The lack of appearance and documents evidenced that Plaintiff was not ready for trial.

A motion for reconsideration must occur within “10 days after service upon the party of written notice of entry of the order.” (Cal. Code Civ. Proc. § 1008(a).) The notice of the written order was mailed to Plaintiff on August 30, 2022. “Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California.” (Cal. Code Civ. Proc. § 1013(a).) Ten days from August 30, 2022 is September 09, 2022. With Cal. Code Civ. Proc. § 1013 taken into consideration, Plaintiff had until September 14, 2022 to file his Motion for Reconsideration. Plaintiff presents that he filed the documents on September 14, 2022, but they were rejected due to formatting issues. (Exh. C [“Reject Reason Other: Please attach a copy of the CRS reservation receipt to the last page of the motion. Also, please submit each document as a PDF in the same envelope.”].) The date of filing of Plaintiff’s Motion for Reconsideration in the Court’s records is September 15, 2022.

Cal. Rules of Court, Rule 2.118(a) presents:

The clerk of the court must not accept for filing or file any papers that do not comply with the rules in this chapter, except the clerk must not reject a paper for filing solely on the ground that:

(1)   It is handwritten or hand-printed;

(2)   The handwriting or hand printing on the paper is in a color other than black or blue-black; or

(3)  The font size is not exactly the point size required by rules 2.104 and 2.110(c) on papers submitted electronically in portable document format (PDF). Minimal variation in font size may result from converting a document created using word processing software to PDF.

The section regarding electronic filing states:

a) Conditions of filing

Each electronic filer must:

(1)  Comply with any court requirements designed to ensure the integrity of electronic filing and to protect sensitive personal information.

(2)  Furnish information the court requires for case processing.

(3)  Take all reasonable steps to ensure that the filing does not contain computer code, including viruses, that might be harmful to the court's electronic filing system and to other users of that system.

(4)  Furnish one or more electronic service addresses, in the manner specified by the court. This only applies when the electronic filer has consented to or is required to accept electronic service.

(5)  Immediately provide the court and all parties with any change to the electronic filer's electronic service address. This only applies when the electronic filer has consented to or is required to accept electronic service.

(6)  If the electronic filer uses an electronic filing service provider, provide the electronic filing service provider with the electronic address at which the filer is to be sent all documents and immediately notify the electronic filing service provider of any change in that address.

(Subd (a) amended effective January 1, 2018; previously amended effective January 1, 2007, January 1, 2011, and July 1, 2013.)

(b) Format of documents to be filed electronically

A document that is filed electronically with the court must be in a format specified by the court unless it cannot be created in that format. The format adopted by a court must meet the following requirements:

(1)  The software for creating and reading documents must be in the public domain or generally available at a reasonable cost.

(2)  The printing of documents must not result in the loss of document text, format, or appearance.

(3)  The document must be text searchable when technologically feasible without impairment of the document's image.

If a document is filed electronically under the rules in this chapter and cannot be formatted to be consistent with a formatting rule elsewhere in the California Rules of Court, the rules in this chapter prevail.

(Cal. Rules of Court, Rule 2.256.)

It is possible that the lack of a reservation receipt may not have furnished the information the court requires for case processing (Cal. Rule of Court, Rule 2.256(a)(2)); however, the Court errs on the side of caution and allows the nunc pro tunc of the filing date. The Motion for Reconsideration shall be addressed on its merits.

Plaintiff presents that the Court considered his failure to appear on March 02, 2022 and that the Court resolved the short-comings of Plaintiff’s motion regarding whether the discs were an ongoing problem or an emergency in Plaintiff’s favor. Plaintiff then presents what he believes constitutes new facts: (1) Ronda Baldwin Kennedy (“Kennedy”) filed the substitution on the same day as the FSC; (2) Plaintiff drove down from Sacramento to Michael Antonovich Antelope Valley Courthouse, arrived at 8:00 am on March 02, 2022, spoke to Kennedy upon arrival and was told that the FSC was continued. Plaintiff states that he had no reason not to believe his attorney and his failure to appear at the FSC scheduled for March 02, 2022 was a mistake. Plaintiff presents that he acted diligently and Defendant will not be prejudiced while Plaintiff will be irreparably harmed if his case is not heard at trial.

Defendants present that the test for neglect is whether “, “a person can be negligent by acting or by failing to act. A person is negligent if that person does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.” (Judicial Council of California Civil Jury Instruction 401) Defendants highlight that driving down from Sacramento and not appearing at the FSC is an action that no reasonable person would have done. Defendants also present that Plaintiff’s motion does not address new information, new circumstances, or new law and could have been provided with the previous Motion and/or during oral arguments, and so, Plaintiff does not comply with Cal. Code Civ. Proc.§ 1008(b). Defendants further present that Kennedy was a limited scope attorney and, as such, Plaintiff still represented himself in pro per and should have acted as a reasonable attorney would have in the same or similar circumstances and, thus, should have checked in and appeared at the hearing.

It is well established in California law that a motion brought under Cal. Code Civ. Proc. § 1008 must present “not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689.) There is no presentation by Plaintiff as to why this information was not brought up on the August 30, 2022 hearing other than “[he] did not bring it up in [his] motion to vacate/set aside the dismissal.” (Decl. Plaintiff ¶ 13.) The Court had posted its tentative prior to the August 30, 2022 hearing which included the reasoning behind the denial. Should a party state that it cannot find the tentative, the Court either directs them to the website or, if in person, prints the tentative for the party and places the hearing on a second call to allow the party time to read the tentative. There is no reason for Plaintiff, upon reading the tentative, not to bring up this information at the August 30, 2022 hearing.

Further, Plaintiff has been proceeding in pro per since July 27, 2020. He retained Kennedy as a limited scope attorney three (3) times: (1) May 26, 2021 in which Kennedy stated she would be appearing on the hearing set on May 27, 2021 at 08:30 AM in Department A14 and at any continuance of that hearing; (2) on August 12, 2021 in which Kennedy stated that she would be appearing at the August 25, 2021 hearing in Department A14, at any continuance of the hearing, at trial on September 03, 2021, at any continuance of that trial, and at any and all settlement conferences or meet and confer; and (3) on August 19, 2021 in which Kennedy stated that she would be appearing at the August 25, 2021 hearing in Department A14, at any continuance of the hearing, at trial on September 03, 2021, at any continuance of that trial, to request a trial continuance, and at a settlement conference or meet and confer.

"Limited scope representation" is a relationship between an attorney and a person seeking legal services in which they have agreed that the scope of the legal services will be limited to specific tasks that the attorney will perform for the person. (Cal. Rules of Court, Rule 5.425(a).) Kennedy’s representation constitutes noticed representation. A substitution of attorney was filed on March 02, 2022 after the FSC. As the substitution was signed by Plaintiff, it constitutes the completion of Kennedy’s limited representation. (Id. at (d).)

The Court notes that, according to its files, Kennedy signed up for the March 02, 2022 FSC, but failed to appear. Defendants did not have contact with Kennedy. By March 11, 2022, Kennedy’s appearance would have been beyond her scope as she was already relieved.

Plaintiff, despite having a limited scope attorney, still retains responsibilities for proceeding in pro per. According to the filings, Kennedy’s scope did not include appearing at FSCs and, as such, Plaintiff had the duty to appear. Plaintiff, despite driving down from Sacramento, failed to appear.

Because this information (1) could have been brought up earlier and (2) does not affect Plaintiff’s own responsibilities as an individual proceeding in pro per, the Motion for Reconsideration is DENIED.

Conclusion

Plaintiff Charles Cooper’s Motion for Reconsideration to Vacate/Set Aside Dismissal is DENIED.